Introduction
This article presents an analysis of judicial decisions regarding the resolution of common expense (aidat) issues in mass housing projects. The examined court decisions provide a holistic perspective on issues such as the legal basis of common expense debt, the determination of its amount, collection authority, legal remedies to be pursued in case of non-payment, and procedural principles in the litigation process. The article outlines the judicial practice shaped within the framework of the Condominium Law, Cooperatives Law, and general provisions, summarizing the key points to be considered in such disputes.
Determination of Legal Basis: The first step in resolving the dispute is to determine the legal status of the structure. Whether the structure is registered as a “mass housing project” according to the Condominium Law (KMK), whether it is built on multiple parcels, or whether it is a cooperative structure directly affects the applicable legal provisions (Condominium Law, Cooperatives Law, General Provisions) and the competent court (Civil Court of Peace, Civil Court of First Instance/Commercial Court).
Priority of the Management Plan: Court decisions consider the “management plan”, which acts as a contract between flat owners, as the primary source for resolving disputes. Matters such as the method of collecting fees, participation rate, and the authorized management body are primarily determined according to the management plan.
Binding Nature of General Assembly Resolutions: Decisions made at duly convened general meetings of flat owners or cooperative general assemblies bind even owners/members who did not attend the meeting or remained opposed. The amount of fees, the creation of an additional budget, and late payment penalty rates are determined by these decisions. If no annulment lawsuit is filed against these decisions within the legal period, the decisions become final.
Burden of Proof and Transparency: The management demanding fee receivables must prove the expenses on which these receivables are based with documents such as invoices and receipts. Failure to document expenses may lead to the rejection of the claim. Therefore, maintaining transparent and auditable accounting records is of critical importance.
Adherence to Procedural Rules: Procedural rules, such as the correct determination of the competent and authorized court in fee disputes, adherence to lawsuit filing deadlines, and proper direction of hostility, are vital for the merits of the case to be considered. Procedural errors can lead to the dismissal of the lawsuit.
1. Legal Basis and Fundamental Documents
Court decisions indicate that the legal nature of the building and the fundamental documents related to this nature must first be examined in resolving fee issues.
Management Plan: The management plan is the fundamental contract that regulates the relationships among unit owners. This was clearly stated in the decision of the 20th Civil Chamber of the Supreme Court of Appeals, numbered 2017/9149 E., 2019/1201 K.: “the management plan, being a contract made between unit owners and binding upon the parties, requires that any provisions in the management plan concerning the debts and obligations of the unit owners, related to the real estate subject to the lawsuit, must first be applied.” Similarly, the 18th Civil Chamber of the Supreme Court of Appeals emphasized in its decision numbered 2013/7471 E., 2013/10640 K. that the management plan is binding on all unit owners and their successors.
General Assembly Decisions: In matters not stipulated in the management plan or requiring further detail, the decisions of the board of unit owners (or the cooperative’s general assembly) come into play. As stated in the decision of the Ankara 8th Civil Court of Commerce, numbered 2021/659 E., 2023/83 K., “decisions made in general assemblies and not objected to, in accordance with Law No. 1163 on Cooperatives and the provisions of the main agreement, shall be binding on all partners” is the governing principle. If no annulment lawsuit is filed against these decisions within the legal period (usually 1 month), the amounts of dues and payment conditions become final (Izmir 6th Civil Court of Commerce, 2019/189 E., 2019/231 K.).
Collective Building Status: Whether the building has officially transitioned to “collective building” management under the Condominium Law (KMK) plays a key role in resolving disputes. In the decision of the 20th Civil Chamber of the Supreme Court of Appeals, numbered 2017/1044 E., 2018/681 K., it was stated that in sites not transitioned to collective building management, each plot should be managed by its own board of flat owners, and dues should be collected by these plot managers. If not transitioned to a collective building, general provisions instead of the Condominium Law (KMK) apply in disputes, and the competent court becomes the Civil Court of First Instance (20th Civil Chamber of the Supreme Court of Appeals, 2017/884 E., 2017/5013 K.).
2. Determination of Dues Amount and Participation Principles
How the amount of dues will be determined is another common source of disputes.
Land Share Ratio: According to Article 20 of the Condominium Law (KMK), the main rule is that flat owners contribute to common expenses “in proportion to their land shares.” This principle has been affirmed in the decision of the Grand Chamber of Civil Cases of the Supreme Court of Appeals, numbered 2013/740 E., 2014/392 K.
Different Expense Items and Benefit Status: The law allows apartment owners to make a different agreement among themselves. However, courts observe the principle of “benefiting from the service” in participation in expenses, especially for independent sections of different natures (e.g., shops, residences). In the decision numbered 2013/7471 E., 2013/10640 K. of the 18th Civil Chamber of the Supreme Court, it was emphasized that the court “should determine the amount of dues payable by identifying which services the independent section numbered 2, subject to the lawsuit, benefits from and which it does not” should conduct an expert examination.
Proof and Documentation: The management is obliged to prove the expenses forming the basis of the requested dues with documents. In the decision numbered 2018/1311 E., 2019/5 K. of the Istanbul Anatolian 4th Civil Court of Commerce, it was ruled that the claim for dues could not be proven due to the plaintiff cooperative’s inability to submit expense documents related to the services. This situation demonstrates the importance of transparent and document-based management.
3. Resolution of Disputes and Litigation Process
In case of non-payment of dues, management can resort to legal action. Procedural rules are of great importance in this process.
Competent and Authorized Court: In disputes arising from the Condominium Law (KMK), the Civil Court of Peace located where the main immovable property is situated is competent and authorized. This rule is clearly stated in the decision of the 18th Civil Chamber of the Supreme Court of Appeals, numbered 2013/14069 E., 2013/16456 K.: “According to Article 1 of the Annex of the Condominium Law, all disputes arising from this law must be resolved in the civil court of peace – regardless of their value.” However, in cases where the structure does not have the status of a collective building or the dispute arises from cooperative law, the competent court may be the Civil Court of First Instance or the Commercial Court of First Instance.
Authority to Collect: Who is authorized to collect the dues is also an important issue. Especially in structures consisting of more than one parcel, it must be determined by examining the management plan whether the authority to collect dues lies with the collective building management or the parcel management. In the decision of the 20th Civil Chamber of the Supreme Court of Appeals, numbered 2017/2591 E., 2018/5018 K., it was stated that this matter should be investigated. Collections made by a management without authority may be deemed unlawful (Supreme Court of Appeals 18th Civil Chamber, 2015/21918 E., 2016/2879 K.).
Enforcement Proceedings and Annulment of Objection: The most common recourse for unpaid dues is enforcement proceedings without a judgment. If the debtor objects to the enforcement proceedings, the management files a lawsuit for the “annulment of the objection”. In these lawsuits, the court examines the general assembly decisions, the operating plan, the management plan, and the expenditure documents to determine the existence and amount of the debt.
Conclusion
The judicial decisions reviewed indicate that the solution to dues issues in collective structures does not rely on a single formula, but rather that each case must be evaluated within its own unique circumstances. Nevertheless, the roadmap to be followed for a successful and legally sound solution is clear:
Firstly, the existence of a clear and understandable management plan that is appropriate for the legal status of the building and fairly regulates the rights and obligations of all owners is essential. Secondly, the board of apartment owners/general assembly meetings where the dues are determined must be conducted in accordance with procedures, and the decisions must be recorded unequivocally. Thirdly, for the management to document all expenses, maintain transparent accounting, and regularly inform the apartment owners will minimize potential disputes.
However, if a dispute arises despite these steps, meticulously adhering to legal deadlines and procedural rules, and seeking justice in the correct court with the right evidence, is the most fundamental solution indicated by judicial decisions. An article suggestion.
Why is Tuzla Lawyer Support Necessary?
Disputes over dues in collective housing schemes are complex cases that require the joint evaluation of not only the Condominium Law, but also the Cooperatives Law, general provisions, and judicial precedents. Issues such as the interpretation of the management plan, the validity of general assembly decisions, the calculation of the amount of dues based on land share and utilization status, and the burden of proof with documents contain technical details. Furthermore, which court has jurisdiction (Civil Court of Peace, Civil Court of First Instance, or Commercial Court of First Instance) and the procedure to be followed in enforcement proceedings also directly affect the outcome of the case.
Therefore, obtaining support from an experienced lawyer in areas such as Tuzla, Pendik, Kartal, Maltepe, Aydınlı, Orhanlı, Gebze, Çayırova, Tepeören, and Darıca, especially in the field of collective housing and cooperative law, is of great importance. Professional legal assistance ensures that both managements collect their receivables accurately and quickly, and that owners are protected against unjust demands for dues.
